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Honorable Ben J. Dean. 

District Attorney’ 

90th Judicial District of Texas 

Breckenridge, Texas 

D&r Sir: Opinion No. O-7069 

Re: Absentee voting by veterans under the provisions of Art. VI, 

Sec. .2a, Constitution of Texas, 

and Art. 2956, Revised Civil 

Statutes of Texas 

We have your recent request for an opinion which reads in 

part as follows: 

“Article 2956 R.S. with reference to absentee voting, 

provides in sub-division 2 thereof that an elector who desires to vote by absentee ballot shall make an application 

which shall ‘be accompatiied by the poll tax receipt or exemption certificate of the elector.’ 

“since a man recently in service is not required to 

secure an exemption and the tax assessor-collector should 

not issue one I should like to ask you the following question: 

“When a service man whose rights to vote is secured 

by the constitutional amendment Section 2a, Article VI of the 

Texas Constitution, desires to vote by absentee ballot, in 

what manner is he to proceed in order to get an absentee 

ballot, since he does not have an exemption to send with his 

application for such ballot?” 

1n our Opinion No. O-7034, copy of which is enclosed herewith, we carefully considered the effect of Art. VI, Sec. 2a. of the Constitution upon prior election laws, pointing out that this constitutional 

amendment was adopted after the last session of the Legislature and that 

therefore the Legislature has not amended the old election statutes since 

its adoption. in that opinion, although we did not discuss absentee voting, 

we held that a person who comes within the terms of the constitutional 

amendment, and who is otherwise a,qualified voter, is entitled to vote even 

though he has not paid a poll tax and has not obtained a certificate of exemption, and even though his name does not appear on the list of voters 

prepared by the tax collector. We further held, in that opinion that if a 

person who comes within the terms of the constitutional amendment, and 

who is otherwise a qualified voter, shows by his own oath that he is a 
Hon. Ben J. Dean - Page 2 

qualified voter, the election judges cannot legally refuse to accept his 

vote. In discussing this question, we said: 

“Such a person is entitled to vote ‘in any election 

held under the authority of the laws of this Stats, during 

the time the United States is engaged in fighting a war, 

or within one year after the close of the calendar year 

in which said war is terminated,’ if he shows by his own 

oath (and in a city or town of 10,000 or more inhabitants, 

by the oath of a well-known resident): 

“1. That at the time of the holding of such election 

he is, or within 18 months immediately prior to the time 

of holding such election was, a member of the armed forces of the United States or of the Armed Force Reserve of 

the United States, or of any branch or component part of 

such armed forces or Armed Force Reserve, or the United 

States Maritime Service or the United States Merchant 

Marine,; and 

“2. That he is subject to none of the disqualifications 

stated in Art. VI, Sec. 1, of the Constitution of Texas; and 

“3. That he has attained the age of twenty-one years 

and is a citizen of the United States and has resided in this 

State one year next preceding such election and the last six 

months within the district or county in which such person 

offers to vote.*’ 

Art, 2956, Revised Civil Statutes of Texas. provides in part 

as follows: 

“Subdivision 1. Any qualified elector of this State who 

is absent from the county of his residence, or because of 

sickness or physical disability can not appear at the poll 

plac~e in the election precinctof his residence, on the day of 

holding any general, special, or primary election, may, nevertheless, cause his vote to be cast at such an election in the 

precinct of his residence by compliance with one or other of 

the methods hereinafter provided for absentee voting. 

“Subdivision 2. Such elector shall make application 

for an official ballot to the county clerk in writing signed 

by the elector, or by a witness at the direction of said elector in case of latter’s inability to make such written application because of physical disability. Such application shall 

be accompanied by the poll tax receipt or exemption certificate of the elector, or, in lieu thereof, his affidavit in writing that’sa- has been lost or mislaid. If the ground of 
Hon. Ben J. Dean - Page 3 

application be sickness or physical disability by reason of 

which the elector can not appear at the polling place on election day, a certificate of a duly licensed physician certifying as to such sickness or physical disability shall acc~ompany the application. 

‘Subdivision 3. At any time not more than twenty (20) 

days, nor less than three (3) days, prior to the date of such 

an election, such elector making his personal appearance before the county clerk of the county of his residence at his office and delivering to such clerk his application aforesaid. 

shall be entitled to receive from said clerk one official ballot which has been prepared in accordance with law for use 

in such election, which ballot is then and there, in the office 

of said clerk of said county, and in the presenc’e of said clerk 

and of no other person, except the witness who is authorized 

to assist elector in certain cases as hereinafter provided, to 

be marked by the elector, or by said witness in case of physical disability of elector, so as to conceal the marking, and 

same shall, in the presence of the clerk, be deposited in a 

ballot envelope furnished by said clerk. which envelope shall 

bear upon the face thereof the name, official title and post 

office address of such county clerk, and upon the other side 

a printed affidavit in substantially the following forum, to be 

filled out and signed by the elector; provided, however, that 

in case of the physical disability of elector preventing him 

from filling out and signing such affidavit, then the witness 

who assisted the elector in marking his ballot shall fill out 

and sign affidavit for and in behalf of elector and shall also 

sign his, witness’ name as prescribed in the following form: 

“State of 

“County of 

“I, , do solemnly swear that I am a Resident of Precinct No. , in County, and am 

lawfully entitled to vote at the election to be held in said precinct on the day of I 19 ; that I am prevented from appearing at the polling plaxsaid Precinct 

on the date of such election because of (illness), (physical 

disability), (or because of absence from County), 

(elector to signify one of foregoing reasons) that the enclosed ballot expresses my wishes, independent of any dictation or undue persuasion of any person; that I did not use any 
Hon. Ben J. Dean - Page 4 

memorandum or device to aid me in the marking of said ballot. 

“Srgnature of elector 

“By: 

Name of witness who assisted 

elector in event of physical disability. 

‘Subdivision 4. At any time not more than twenty (20) 

days, nor less than three (3) days prior to the date of such 

an election, such elector who makes written application for 

a ballot as provided for in Subdivision 2 hereof, shall be entitled to have his ballot cast at such an election on compliance with the following provisions: 

“The application, including fifteen cents (15c) to cover 

postage, shall be mailed to the County Clerk of the elector’s 

residence whose duty it shall be forthwith to mail to such 

elector a blank official ballot and ballot envelope as provided in Subdivision 3, which ballot shall be marked by elector, 

or by witness at the direction of said elector in case of the 

latter’s inability to mark such ballot because of physical 

disability, in the presence of a Notary Public or other persons qualified under the law to take acknowledgments, and 

in the presence of no other person except said witness and/ 

or such officer, and in such manner that such officer cannot 

know how the ballot is marked, and such ballot shall then in 

the presence of such officer be folded by the elector or by 

said witness in case of physical disability of said elector, 

deposited in said envelope, the envelope securely sealed, 

the endorsement filled out, signed and sworn to by the elector, or in case of physical disability, then by the said witness for and in behalf of said elector, and certified by such 

officer and then mailed by said officer, postage prepaid, to 

the County Clerk. 

“Subdivision 5. Upon receipt of any such ballot sealed 

in its ballot envelope duly endorsed, the clerk shall keep the 

same unopened until the second day prior to such election, 

and shall then enclose same together with the elector’s application and accompanying papers, m a larger or carrrer 

envelope whrch shall be securely sealed and endorsed with 

the name and official title of such clerk, and the words ‘this 

envelope contains an absentee ballot, and must be opened 

only at the polls on election day,’ and the clerk shall forth- 
Hon. Ben J. Dean - Page 5 

with mail same., or ;deliver it in .pe.rson, to, the, presiding 

judge of election,, or to~any,assist.a,nt judge of election, in 

said precinct. 

‘,knd ballots mailed out’bythe county clerk within 

the legal time, but not received back by him on or before 

the third day prior to the election on the day of election, 

shall not be voted, but shall remain in the custody of the 

county clerk during the thirty (30) day period provided in 

Subdivision 6. 

“Subdivision 6. On the day of such election, and in 

the presence of the election officers, and the supervisors, 

if any, one of the judges of election shall, between the hours 

of 2:00 and 3:00 o’clock open the carrier envelope only, announce the elector’s name and compare the signature upon 

the application with the signature upon the affidavit on the 

ballot envelope. In case the election board finds the affidavits duly executed, that the signatures correspond, that 

fhe applicant LS a duly, qualified elector of the precmct, and 

that he has not voted in person at said election, they shall 

open the envelope containing the elector’s ballot in such 

manner as not to deface or destroy the affidavit thereon, 

take out the ballot therein contained without permitting same 

to be unfolded or examined and having endorsed the ballot 

in like manner as other ballots are required to be endorsed, 

deposit the same in the proper ballot box and enter the elector’s name in the poll list the same as if he had been present and voted in person. If the ballot be challenged by any 

election officer, supervisor, party challenger, or other person, the grounds of challenge shall be heard and decided acc~ordmg to law, including the consideration of any affidavits 

submitted in support of or against such challenge. If the ballot be admitted, the words ‘absentee voter’ shall be set down 

opposite the elector’s name on the poll list. If the ballot be 

not admitted, there shall be endorsed on the back thereof the 

word %ejected,’ and all rejected ballots shall be enclosed, 

securely sealed, in an envelope on which words ‘rejected absentee ballots’ have been written, -together with a statement 

of the precinct and the date~of election, signed.by the judges 

and clerks of election and returned in the same miLMer as 

provided for the return and preservation of official ballots 

voted at such election. In all cases, the application poll tax 

receipt or exemption certificate, ballot envelope and the affidavits and certificates accompanymg same shall be returned by the offmers of election to the county clerk who 

shall keep all such papers except poll tax receipts and exemption certificates for one (1) year and shall return poll 

tax receipts and exemption certificafes to the voter at any 
Hon. Ben J. Dean - Page 6 

time after the same have been returned to him except in 

case of challenge when such poll tax receipts and exemption certificates shall be held thirty (30) days and as much 

longer thereafter as any Court or reviewing authority may 

direct. 

“Subdivision 10. The county clerks, their deputies 

and officers acting under this Article shall be consrdered 

as Judges or officers of election within the scope of Articles 215 to 231, inclusive, of the Penal Code of Texas, and 

all amendments thereto, and be pumshable as in sard Articles respectively, provided in the case of judges or officers of election.” (Emphasis supplied) 

Your request presents the problem of determining the effect 

of the constitutional amendment upon the above-quoted provisions of Art. 

2956. Although we have found no court decisions construing the constitutional amendment, the decisions hereinafter discussed illustrate the 

liberality with which the courts have interpreted the provisions of Art. 

2956. 

In the case of Stratton v. Hall, 90 S.W. (2d) 865 (El Paso Civ. 

App. 1936), it was held that absentee ballots could not be disregarded because of non-compliance with Article 2956. In its opinion, the Court said: 

“It appears to be well settled that in the absence of a 

statute prohibiting the counting of ballots because of irregularities either in preparing or casting, and in the absence of 

fraud or of a showing that the returns were changed or tam’- 

pared with, ballots cast by qualified voters should be counted. 

Hooker et al. v. Foster et al. (Tex. Civ. App.) I9 S.W. (2d) 

911; Ramsay v. Wilhelm (Tex. Civ. App.) 52 S.W. (2d) 757 

(writ refused).” 

In Lee v. Wbitehead. 182 S.W. (2d) 745 (San Antonio Civ,App. 

1944) it was held that an absentee ballot was properly counted, although 

not accompanied by the required application and affidavit of the voter as 

required by Article 2956, where it was apparent that such omission was 

due to no failure on the part of the voter. 

In State v. Martin,, 186 S.W. (2d) 111 (Amarillo Civ. App. 1945). 

the Court said: 

“Article 2956 of the statutes contains provisions for 

absentee voting and regulations governing the same. . . . 

The detailed allegations contained in plaintiff’s petition alleged noncompliance with a number of these provisions. 
h 

Hon. Ben J. Dean - Page 7 

. 

The statute does not provide that in the case of violation 

of any of the provisions alleged by appellant the ballots 

shall not be counted. . . 

” 

. . . Should the Legislature in its wisdom see fit 

to provide that for any or all of such irregularities as 

alleged by appellant, an absentee ballot otherwise valid, 

should not be counted, that is within its province, but 

the courts of Texas have throughout the years liberally 

construed the statutory regulations affecting the right 

of a’voter freely to cast his vote in the expression of his 

free choice at an election and, in the absence of statutory command, will not disfranchise him.” 

It should be noted that subdivision 10 of Art. 2956, quoted 

above, provides that county clerks shall be considered as election judges 

within the scope of Arts. 215 to 231, inclusive, of the Penal Code of Texas. 

hart. 217, Penal Code of Texas, which is one of the statutes referred to, 

provides that: 

,‘Any judge of any election who shall refuse to receive the vote of any qualified elector who, when his vote 

is objected to, shows by his own oath that he is entitled 

to vote, or who shall refuse to deliver an official ballot 

to one entitled to vote under the law, or who shall wilfully refuse to receive a ballot after one entitled to vote has 

legally folded and returned same, shall be fined not to exceed five hundred dollars.” 

In our opinion, the constitutional amendment nullifies and 

renders inapplicable, as to persons who qualify thereunder, all provisions of Art. 2956 relating to poll tax receipts and exemption certificates. Otherwise, the amendment would be meaningless and of no effect. Furthermore, it is clear from the cases cited above that failure 

to comply with all of the terms of this statute will not disfranchise a 

qualified voter. 

If a person swears falsely as to his qualifications, or votes 

when he knows that he is -not a qualified voter, or votes more than once, 

he is subject to criminal prosecution. Arts. 232, 234, 236, and 2,41, Penal 

Code of Texas. And, upon the trial of a contested election, fraudulent 

votes are not counted. Art. 3053, Revised Civil Statutes of Texas. 

In our opinion, an absentee ballot cast by a person who qualifies under the constitutional amendment may be counted although not accompanied by a poll tax receipt, an exem- certificate, or an affidavit. 

However, the voter, in order to preclude any question as to his qualifications, may submit an affidavit, or statement under oath, setting forth his 

qualifications. In the absence of such a statement, neither the county 
Hon. Ben J. Dean - Page 8 

clerk nor the election judges, in case of challenge, would be legally 

bound to accept the ballot. But if the voter’s statement under oath shows 

%hXlie is entitled to vote, his ballot must be accepted; and refusal to 

receive it would violate Art. 217 of the Penal Code of Texas. 

We see no legal objection to the use of a printed affidavit 

form containing the requir~ed information, which could be submitted by 

the voter with his application or with his ballot and transmitted by the 

county clerk to the election officials. 

Approved Feb 23, 1946 

/s/ Grover Sellers 

Attorney General of Texas 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By /s/ Raymond A. Lynch 

Raymond A. Lynch 

Assistant 

RAL:jt/cm 

enclosure 

Approved 

Opinion 

Committee 

By /s/ BWB 

Chairman